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Wednesday, December 08, 2010
 
NBPA Calls for End to Age Requirement

This afternoon ESPN.com reported that the National Basketball Players Association has called for an end to the league's age requirement. This is an interesting development on a few fronts:

First, as we know from the case Clarett v. Nat'l Football League, some courts have found that sports leagues' age requirements are immune to antitrust challenge as long as they are collectively bargained with the union. Thus, if the NBPA no longer consents to an age requirement, it will become easier for a prospective NBA player to challenge the age requirement under Section 1 of the Sherman Act. (For more on this point, see Michael McCann's article on the legality of age restrictions in the NBA and NFL, and my article on the same general point under both U.S. and EU law).

Second, as I have suggested in a forthcoming law review article, sports unions that agree to an age requirement may face some risk of a lawsuit under labor law's duty of fair representation. By seeking to remove this age requirement, the NBPA reduces their risk.

Finally, the NBPA's change of position on an age requirement signals it may play hardball in the upcoming round of labor negotiations with the league.





4 Comments:

I know this is the age old question, but why are they discussing players who are not part of the players union yet. This doesn't seem to help players.

Kenny.

Hi Marc.

Anonymous Anonymous -- 12/08/2010 4:42 PM  


Thanks for the update on this age requirement discussion, had not seen that one.

This will be very interesting and I'm sure that if the age requirement were removed, not only would many celebrate, but much scholarship and, frankly, whining would cease for a while.

Of course, the "one-and-done" mockery in NCAA basketball might also fade as well, and good riddance!

Kenny, as far as your question goes, and it is a fair one, this issue was specifically addressed in the Clarett case and the jurisprudence held that that is within the realm of unions: that is, to negotiate on behalf of those who are not yet members as well, albeit there is still debate as to the legitimacy of the timing of the whole "side letter" agreement between the NFL and the NFLPA way back when...

Anonymous Anonymous -- 12/08/2010 5:07 PM  


Kenny:

It's an interesting question as to whether a union represents prospective members (as well as present members). In the Clarett case (which was an antitrust case: not a labor case), Judge Sotomayor implied that a sports union represents not only current players, but also prospective players. That is why the union was able to bargain away the antitrust rights of Clarett to challenge the NFL's age requirement.

If Judge Sotomayor's view is correct and a sports union is deemed to represent prospective players as well as present players, then there is a strong argument that the union would owe prospective players, as well as current players, a duty for fair representation.

Hope that helps.

Blogger Marc Edelman -- 12/08/2010 5:10 PM  


Marc, wouldn't it be better to say that Clarett was an antitrust claim that was decided with a labor law analysis? Splitting hairs, but to say it was not a labor law case is not totally correct. Agree?

Anonymous Anonymous -- 12/08/2010 5:20 PM  


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